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[Footnotes omitted. They can be found in the original via the link above]

Analyzing the Open Court Principle

The open court principle is a fundamental element of the common law system. It ensures the effectiveness of the evidentiary process while encouraging fair and transparent decision-making. The Privacy Act acknowledges the importance of maintaining the open court principle as well as protecting the privacy of individuals. To this end, section 8 of the Privacy Act, allows the disclosure of personal information without the consent of the individual in situations where the public interest clearly outweighs any invasion of privacy.

The open court principle serves as a means of disseminating information about the judicial process and therefore plays an important role in educating the public. The motivation behind such a policy is public confidence. Without confidence in the judicial system, court authority lacks legitimacy, and without legitimacy the rule of law would be diminished.

In the context of court proceedings, section 2(b) of the Charter serves as a central pillar for the open court principle. It protects freedom of expression, which empowers the press and other media to publicize court proceedings. So, for example, in Edmonton Journal v Alberta (Attorney General) the Supreme Court of Canada held that restricting the publication of matrimonial proceedings violated section 2(b) of the Charter. Crucially, Justice Wilson adopted a contextual approach in analyzing fundamental Charter rights. In Ontario, section 137(2) of the Courts of Justice Act allows a court to seal documents submitted in civil proceedings, treating them as confidential and exempt from the public record. The test for granting a publication ban on court proceedings and court records was developed at the Supreme Court through Dagenais v Canadian Broadcasting Corporation. The test was later modified by R v Mentuck. The decision in Dagenais held that judges have the discretion to impose publication bans on information revealed in a criminal trial, however that right must be weighed against other rights, such as freedom of the press and the right to a fair trial. Mentuck modifies Dagenais by adding that a publication ban should only be ordered when it is necessary to prevent a serious risk to the proper administration of justice and that the salutary effects of the ban must out-weigh the deleterious effects of publication.

Mentuck and Dagenais are murder cases. Some may challenge the need to anonymize case names in the family law context. Although family law cases do not often involve murder, they may involve extreme cases of both physical and psychological abuse. Anonymization helps to protect victims of this abuse.

There is a Need to Maintain Anonymization when Children are the Central Focus of Family Law Cases

There is little doubt that children should remain anonymous when the fallout from a court decision may affect them. The Supreme Court of Canada has made it easier to protect anonymity when children are involved with its decision in AB v Bragg Communications Inc. This case involved a challenge by the Halifax Herald and Global Television to a publication ban sought by a 15-year-old victim of cyberbullying. The high school student was provided with the IP address of someone who had created a fake Facebook profile of her with disparaging remarks about her appearance, as well as intimate and sexually explicit comments. The media argued a publication ban would violate the open court principle. At trial, the court sided with AB, finding that AB had established a prima facie defamation case. However, the trial judge held that a publication ban would limit public awareness of cyberbullying, and that the public could not fully recognize the importance of this issue without full disclosure. So, the judge ordered a temporary publication ban until AB decided whether she would pursue an action for defamation, but AB had not shown that she would be specifically harmed by publication if the action were to go forward. The Court of Appeal upheld this decision. By contrast, the Supreme Court was willing to assume that, because the subject matter involved children and children are in need of special protection by virtue of their chronology, the harm caused by cyberbullying could be objectively determined. As such, preserving anonymity for children is only minimally intrusive on freedom of expression and AB was entitled to proceed anonymously.

Weighing the Costs and Benefits of the Open Court Principle

“The first cost of the open court principle is to privacy.”
—Chief Justice Beverley McLachlin

By exposing the private details of individuals to court, the open court principle creates the potential to violate informational privacy. As early as 2003, the Canadian Judicial Council highlighted how personal information listed on public court documents may be used for identity theft. There is also the potential for discrimination or bias against parties involved in family law cases. Anyone interested in searching for court documents related to an individual (whether a potential employer, client, or member of the public at large) can do so by visiting the court records office in person or by searching online via CanLII or courthouse databases. In this sense, the open court principle threatens an individual’s privacy; yet having an open court is the cornerstone for public law because public access allows oversight of the judicial process. As Justice Fish stated in Toronto Star Newspapers Ltd v Ontario, “In every constitutional climate, the administration of justice thrives on exposure to light — and withers under a cloud of secrecy.” It is through the open court principle that the public gains confidence in the integrity of the court system. At the same time, however, the Supreme Court gives privacy a quasi-constitutional status in Southam, where Dickson J. says the purpose of section 8 of the Charter is “to protect individuals from unjustified state intrusions upon their privacy.” This exposes a fundamental tension between privacy and the open court principle: how can there be protection for an individual’s privacy when the open court principle requires “justice to be seen to be done?”

Private Matters in Public View

This tension comes to the fore in family law where it is often necessary to expose detailed personal information in order to establish rights to child custody, property, and support payments for separating spouses. In an era where online access to court decisions is ubiquitous, there are concerns that disclosing personal information in court exposes the individual to identity theft. Moreover, it is an unanticipated consequence of divorce that what was said in confidence in the context of a marriage is now exposed to the public. The public exposure of such information can be embarrassing and widespread. For example, Vic Toews, the former Minister for Public Safety, learned this the hard way when details of his divorce were broadcast on Twitter after a Liberal Party staff member requested access to his 2008 divorce file.

Some judges in Ontario have used the open court principle to illustrate how litigants are using court resources imprudently. For example, in Bruni v Bruni Justice Quinn demonstrates the limits of a court’s patience for families with chronic legal issues. Despite numerous appearances in family court, the litigants in Bruni were so far from a resolution that the judge resorted to ridicule in order to embarrass them and dissuade them from returning to court. Some choice words from the proceeding include Justice Quinn stating, “Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment. The source of difficulties is hatred: a hardened, harmful, high-octane hatred.” Owing to his disappointment with both sides in this affair, Justice Quinn awarded sole custody to the mother, with the stipulation that she should receive only $1.00 in annual spousal support. This story was the subject of significant commentary in Toronto’s legal community. It raises awareness about the behaviour of some individuals and how judges may respond by publicly disclosing this behaviour. While it is true that knowing the names of the individuals in this case adds no value to the legal decision, there may be some benefit to lawyers and their clients in knowing that improper conduct in the courtroom can follow a person well beyond their civil action.

Although it may be unsettling to have such intimate details surface in a public courtroom, courts have been reluctant to grant anonymity on the grounds of parties suffering embarrassment, shame, or humiliation.

Indeed, sensitive issues are brought to light through the public justice system and provide the traditional justification for the open court principle as a means of exposing injustice and driving social reform in family law.

Political Activism and the Courts: Are Anonymous Records an Alphabet Soup?

Advocates for anonymization argue that the disclosure of litigants’ identities, as well as that of their families, should be limited in order to secure privacy in family law cases. For instance, they argue family courts should use initials and pseudonyms as a universal standard based on the principle that records should only reveal as much information as necessary for a judge to make a determination.

Even if there is some limited protection for individuals by anonymizing court cases, there are administrative challenges in implementing an anonymized system. Since family law deals with issues such as property division and child custody, it lists identifiable information within court records including location, date of marriage, and birth dates for spouses and children. Anonymization would offer some limited protection for family law litigants only if it is comprehensive in removing all identifiers from court documents. With the volume of information present in most family law cases, there is a high likelihood that personal data that should be obscured could be missed.

In Quebec, family law cases are anonymized by replacing party names with letters such as A v B followed by a catalogue number. Lawyers, librarians, students, and judges have to be exceedingly careful in how they cite cases that have been anonymized. With similarly named, de-identified case law, this could lead to more mistakes by legal professionals as they navigate the already complicated task of legal research.

However, as evidenced by Becker and Murdoch, there are public benefits in personalizing the style of cause. While there is a cost in terms of the privacy afforded to individuals who use the court system, the cost is insufficient to justify a right to anonymity by default since such a right does not exist either by statute or under the common law.

There is a reason why names such as Pettkus v Becker and Murdoch v Murdoch are etched into the memories of family lawyers and law students alike. Pettkus v Becker establishes the constructive trust as a remedy for spouses lacking title to property. Unfortunately, it is also infamous for the tragic suicide of Rosa Becker, which exposed the ineffectiveness of the courts in enforcing orders for payment by a recalcitrant spouse. In her suicide note, Rosa Becker explained that her death was a protest against an unfair legal system which had “deprived her of justice and left her penniless.” Becker highlights how personal stories are inter-woven within the facts of a case; they add substance to the legal principles established by law. The names Rosa Becker and Lothar Pettkus helped to personalize this tragic story, which meant that the public could empathize with the injustice that Rosa Becker felt. Had the parties been anonymous, it is questionable to what extent the public would empathize with the tragic case of A in “A v B,” particularly when such anonymization is unlikely to be unique in identifying family cases.

Unlike most areas of law, family law requires the disclosure of personal details revealing the conduct and character of disputing parties. In Murdoch v Murdoch, public outrage at the Supreme Court’s decision to deny a wife’s property claim permeated communities across Canada. As Professor Mary Jane Mossman explains, “…Irene Murdoch’s case became a cause célèbre when some women in Manitoba created a skit about the case, demonstrating wives’ lack of legal entitlement to property. The skit was reproduced and circulated for performance by women’s groups in many parts of Canada…” Had there been no public disclosure of the manner in which Mrs. Murdoch was victimized, the changes in the area of unjust enrichment and constructive trusts may have been long delayed. Instead, attaching a name and a face to the injustice propelled the issue of women’s property rights to the forefront of 20th century Canadian jurisprudence. This is a central function of the open court principle that many privacy advocates overlook.

Family Law: A Constant Target for Judicial Reform

“…we must concentrate our efforts on the specific areas of law with the greatest societal need and where we can have the highest impact. It is for this reason that I continue to advocate for ongoing family law reform.”
—Former Chief Justice of Ontario, Warren Winkler

The cases cited above are well over 30 years old, which raises the question as to whether public disclosure is still relevant to contemporary issues in family law. Arguably, public disclosure is necessary in family law because family law is a regular object of legal reform in Canada. For instance, disclosure was central to Professor John McCamus’ landmark 1994 report in Ontario, which criticized how family law narrowly focused on the interests of married couples, rather than those of common law and cohabiting spouses. At the turn of the century, law reform in Nova Scotia also placed heavy emphasis on family law issues such as enforcement of spousal and child maintenance obligations. More recently in 2011, the province of Nova Scotia asked its residents for feedback on legal reforms that would help ensure that families experiencing divorce and separation would have clear laws governing child custody and access. Thus, discussions of legal reform in Canada consistently focus on family law and how the system can be more equitable to family law litigants.

Access to justice issues in family law offer at least a partial explanation as to why family law features so consistently as a target for reform. Canadian Lawyer magazine reports that the vast majority of unrepresented clients arise from family law cases. The cost of legal services is an obvious barrier to prospective family law litigants as there are often unequal parties bargaining for rights to custody of children and property ownership. Alternative Dispute Resolution (ADR) serves as a very attractive option for family law litigants, offering a less costly, and perhaps more co-operative means of civil dispute resolution. However, Professor Trevor Farrow cites concerns about ADR processes because of their private nature. As a starting point, private dispute resolution methods do not allow for the development of jurisprudence in a particular area of law. Clients, lawyers, and mediators hold whatever resolution parties arrive at in confidence. Bentham’s words — “In the darkness of secrecy, sinister interest and evil in every shape have full swing” — still hold some truth. ADR takes privacy one step further than mere anonymity because the entire process is confidential. As more individuals turn to private dispute resolution instead of the courts for family law matters, any inequity remains hidden from public view. This is particularly troublesome since wealthy individuals are able to shield themselves from public scrutiny by pursuing private dispute resolution. The result is that the public loses the ability to debate serious family law issues because they have no way of knowing what issues arise in the first place. This in turn diminishes the prospect of meaningful reform in family law where it is so desperately needed. Anonymity impoverishes the narrative in family law cases despite the need for a compelling story to elicit civic action and eventual reform in family law.

Comments

Another element of the demand for anonymity, or at least restricted availability, arises in considering if search engines should list family law decisions. The issue was debated on Slaw in March of this year.

There is a practical – in addition to a principled- aspect to the issue. Anonymity degrades the ability to conduct due diligence enquiries.

In a recent family law matter we conducted a series of searches on the names of the parties and a non-party witness across civil and criminal courts in a number of jurisdictions in both Canada and the United States. These searches – which would not have been possible had the styles of cause and decision content been anonymized – disclosed information that was critically relevant to the proceeding at hand and was of persuasive assistance to the Court.

Ironically, the issue before the Court was a request to seal a portion of a domestic family law matter (motion dismissed) however in its reasons for decision the Court on its own initiative identified the parties only by their initials. In dismissing the subsequent appeal, the appellant Court on its own initiative then un-anonymized the style of cause and identified the parties by their names.

As an aside, in Ontario -unlike a number of other provinces- there is no standardized protocol requiring notice to be given when a party intends to seek a sealing order; the matter is left to the discretion of the Court. In the result, there does not appear to be an emerging or consistent trend in the case law to guide counsel who seek or oppose anonymization or a sealing order.

The notice protocols in some jurisdictions require notice to be given to local media, which stand as proxy for the public. In other jurisdictions notice is given by a simple posting on a bulletin board at the local courthouse.

The absence of a notice protocol in Ontario presents counsel with an ethical dilemma. In a family law matter both parties typically wish to protect their respective privacy interests; at the risk of a tongue in cheek observation, often the only thing that family law litigants can agree on is that the process is extraordinarily intrusive upon privacy. If one party to a family law matter requests anonymization or a sealing Order, who advocates on behalf of the open Court principle? Should responding counsel simply consent because it is in the best interest of her client to do so? Should responding counsel oppose and advocate on behalf of the open court principle so that the issues are fully canvassed and before the Court? Should responding counsel urge notice?

As a further aside, other public sector actors that collect or have access to private information distinguish between anonymization (the irreversible severing of personally identifying information from the underlying content) and “de-identification” ( a severing which can be reversed by a trusted custodian). An explanatory link is at http://en.wikipedia.org/wiki/De-identification